EDO16 v Minister for Immigration

[2017] FCCA 2158

FEDERAL CIRCUIT COURT OF AUSTRALIA

EDO16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2158

Catchwords:
MIGRATION – Protection visa application – review of decision of Administrative Appeals Tribunal – whether the Tribunal failed to consider relevant facts and evidence – whether the Tribunal’s decision was affected by an apprehension of bias or actual bias – whether the Tribunal’s decision was affected by interpreter error – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 91R(3), 501

Cases cited:

Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6

Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17
SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668

Applicant: EDO16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: PEG 645 of 2016

Judgment of: Judge Smith

Hearing date: 27 June 2017

Date of Last Submission: 27 June 2017

Delivered at: Sydney and Perth by video-link

Delivered on: 29 September 2017

REPRESENTATION

The applicant appeared in person by video-link.

Solicitors for the Respondents: Mr A Burgess, Sparke Helmore

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

PEG 645 of 2016

EDO16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 24 November 2016. The Tribunal affirmed a decision of a delegate of the first respondent to refuse to grant the applicant a protection visa.

2. In order to succeed, the applicant must establish that the Tribunal’s decision was affected by jurisdictional error. For the reasons that follow, the applicant has not done that and so the application must be dismissed.

Background

1. The applicant is a citizen of Vietnam who arrived in Australia on 16 July 1999 on a student visa. The applicant was later refused a further student visa because he had not complied with his study obligations and he departed Australia on 8 October 2007.

2. The applicant then married an Australian citizen and was granted a temporary visa which enabled him to arrive in Australia on 21 January 2008. On 3 March 2010, the applicant was granted a permanent resident visa. On 10 May 2010, the applicant travelled to Vietnam and returned to Australia on 26 May 2010. He has not left Australia since that date.

3. On 14 March 2012, the applicant lodged an application for Australian citizenship.

4. On 5 September 2013, before the application for citizenship was finalised, the applicant was convicted of sexual assault and received a sentence of 18 months imprisonment. On 24 April 2014, the applicant was notified that he was unable to be conferred citizenship because of his sentence of imprisonment.

5. On 17 September 2014, the applicant’s permanent resident visa was cancelled under s.501 of the Migration Act1958 (Cth) (Act). Upon release from gaol, the applicant was transferred to immigration detention. On 26 November 2014, the applicant lodged an application for a protection visa.

6. The applicant claimed that he feared harm in Vietnam for reason of his political opinion. The applicant claimed that:

   i.as Vietnam was a Communist country, citizens do not have freedom of speech and that he fought for human rights and freedom of speech and would be charged for his actions against the government;

   ii.he was known to the Vietnamese Communist police and that he had been threatened by a General; and

   iii.when he returned to Vietnam in 2010, he had met with some dissidents and that he had been posting on Facebook and the police were looking for him.

7. On 17 March 2015, a delegate of the Minister made a decision to refuse to grant the applicant a protection visa and so the applicant applied to the Refugee Review Tribunal[1] (RRT) for review of that decision.

   [1] As it was then known. On 1 July 2015 it became the Administrative Appeals Tribunal: Tribunals Amalgamation Act 2015 (Cth).

8. On 25 June 2015, the RRT made a decision to affirm the delegate’s decision. On 5 August 2016, that decision was quashed by orders made in this Court and the matter was remitted to the Tribunal for determination according to law.

9. On 1 July 2015, the Tribunal assumed the functions of the RRT in respect of the review of certain decisions, such as that of the delegate to refuse to grant protection visas. For that reason, the Tribunal completed the review once the matter was remitted by order of this Court.

10. On 3 November 2016, the applicant attended a hearing conducted by the Tribunal and was assisted by an interpreter in the Vietnamese language. It is necessary to return to some aspects of this hearing in due course.

11. On 24 November 2016, the Tribunal made a decision to affirm the delegate’s decision.

Tribunal’s decision

1. The Tribunal rejected the applicant’s claims based upon his political opinion. It found that his claim to have been involved in political activities in Vietnam in his two week trip there in May 2010 were neither credible nor plausible. The applicant had not engaged in any political activities in the long periods during which he was in Australia prior to May 2010, and after his return from Vietnam in May 2010 he did not undertake any political activities for over four years. The applicant only commenced posting on Facebook after he had been convicted of sexual assault, completed his sentence and had been transferred to immigration detention after his visa was cancelled. For those reasons, the Tribunal did not accept that the applicant met any political dissidents in Vietnam in May 2010 or made any gifts to any of them.

2. The Tribunal accepted that the applicant had maintained a Facebook account and expressed political views in relation to human rights violations by the Vietnamese government since October/November 2014. The Tribunal did not accept that any of the posts on his page had been made by a General in Vietnam as alleged by the applicant and found that the chance or risk that the person who had posted a threat on his page would harm the applicant in Vietnam was remote.

3. The Tribunal accepted that another person had posted a threat on the applicant’s page and while it could not rule out that that person was a soldier of the Vietnamese Army, the Tribunal found that the risk of this person harming the applicant upon return to Vietnam was also remote.

4. The Tribunal considered that the postings on the applicant’s page were not indicative of any adverse interest in the applicant by Vietnamese authorities. Taking into account the country information submitted by the applicant, the Tribunal did not accept that he had come to the adverse attention of the authorities in Vietnam, or that he was on a blacklist due to his activities on Facebook. The Tribunal found the chance that the applicant would be seriously harmed or significantly harmed on account of those activities was remote.

5. In light of the Tribunal’s concerns about the applicant’s credibility, it did not accept that the applicant’s family had been under surveillance; that the authorities had gone to his parents’ house to search for him; and that his family members had been threatened with jail.

6. Further, the Tribunal found that the only reason that the applicant engaged in activities on Facebook, was to strengthen his protection claims to be a refugee and consequently disregarded the conduct under s.91R(3) of the Act.

7. The Tribunal concluded that the applicant would not engage, or wish to engage, in any political activities upon return to Vietnam.

8. The Tribunal found that even taking into account the Facebook activities for the purposes of the criterion in sub-s.36(2)(a) of the Act, it did not accept that the activities had created an adverse profile with the authorities in Vietnam, or that the applicant would engage in, or wish to engage in, political activities upon return to Vietnam.

9. For those reasons, the Tribunal found that there was no real chance of persecution in Vietnam on account of the applicant’s actual or imputed political opinion. The Tribunal also found that there were no substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam, that there was a real risk that he would suffer significant harm on that basis.

10. The Tribunal also considered the possibility that the applicant might satisfy the criteria for the grant of a protection visa in light of his Catholic faith; the fact that he would return as a failed asylum seeker; and as a person with a criminal conviction in Australia.

11. The Tribunal accepted that the applicant was a Catholic but found that the applicant would worship quietly and in a manner that conforms to government policies and sensitivities and that the chance or risk of him being seriously harmed or significantly harmed on account of being a Catholic was remote. The Tribunal also found that the applicant would act in that manner not due to any fear of harm, but due to a lack of interest in involvement in activities that are in opposition to government policies.

12. The Tribunal found on the basis of country information and the applicant’s own circumstances, that the applicant would not face a real chance of persecution or significant harm as a failed asylum seeker.

13. Similarly on the basis of country information available to it and the applicant’s own circumstances, the Tribunal found that the applicant would not face a real risk of serious harm or significant harm on account of his criminal convictions in Australia.

14. The Tribunal then considered all of the applicant’s claims on a cumulative basis and maintained its view that the applicant did not face a real risk of serious or significant harm upon return to Vietnam.

15. On the basis of those findings, the Tribunal was not satisfied that the applicant satisfied the criteria for the grant of a protection visa and so affirmed the decision of the delegate.

Consideration

Ground one: the Tribunal denied the applicant procedural fairness by ignoring the fact that the applicant’s story could be possible and ignoring evidence from the applicant’s witness

1. There are two parts to this ground. The first part is merely a disagreement with the Tribunal’s findings of fact and, as such, amounts to an attack on the merits of the decision which is beyond the scope of judicial review.

2. The second part does raise a potential jurisdictional error in the Tribunal’s decision; however, it must fail on the facts. At the hearing conducted by the Tribunal on 3 November 2016, the Tribunal took evidence from a witness in accordance with a request made by the applicant. That witness had also made a statement dated 1 October 2016. The witness’ evidence was that he had met the applicant in Vietnam in 2010 and seen him present at a meeting with dissidents there. The witness said that after the meeting, the Vietnamese authorities had hunted and prosecuted dissidents and that some of them had no choice other than to flee the country for their safety.

3. As I have observed, the Tribunal did not accept the applicant had met with dissidents in Vietnam as claimed. In arriving at its findings, it had taken into account the evidence of the witness. The Tribunal dealt with that evidence at [26] of its decision as follows:

   … In making my findings, I have taken into account the oral evidence given to the Tribunal by the applicant’s witness, [name] and a written statement from him. I accept that the applicant met the witness (who is an asylum seeker) in detention in Australia in 2014 but given my highly significant and fundamental concerns about the applicant’s credibility referred to above, I have given little weight to the witness’ evidence that he had met the applicant at a political meeting in Vietnam; certainly not enough to overcome my highly significant concerns about the applicant’s credibility.

4. This passage reveals that the Tribunal did not give much weight to the witness’ evidence rather than that it ignored it. The weight to be given to evidence and other material before the Tribunal, is a matter for the Tribunal to assess as part of its fact-finding function: see Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 and 281-282; [1996] HCA 6 (Brennan CJ, Toohey, McHugh and Gummow JJ).

5. For those reasons the first ground is rejected.

Ground two: the Tribunal did not consider all the evidence or did not take into account relevant considerations or based the decision on poor judgment

1. The Tribunal’s reasons disclose that it did consider all of the applicant’s own evidence, as well as that of the applicant’s witness and the country information submitted by the applicant in support of his claims. In light of that, this ground raises nothing higher than an attack on the merits of the Tribunal’s decision and is therefore rejected.

Ground three: the Tribunal was affected by bias

1. It is not unusual for an unrepresented litigant to feel that a decision maker who has rejected his or her claims was somehow biased against him or her in the sense that the decision maker had engaged in some form of prejudgment. Why else, that person might ask, would my claims be rejected?

2. Such a feeling however, justifies neither the making of a bare claim of bias nor a conclusion that there was bias which affected the Tribunal’s decision. Such a claim is a serious one which must be firmly and distinctly made and clearly proved: see Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 531; [2001] HCA 17. There is nothing in this case other than the outcome of the review itself that could possibly suggest that the Tribunal was actually biased, or that there was a reasonable apprehension that it might have been biased.

3. In SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668, von Doussa J said at [38]:

   In my opinion it will be a rare and exceptional case where actual bias can be demonstrated solely from the published reasons for decision.  Reasons for decision reflect conclusions reached at the end of the decision making process, and if the decision is against the party complaining, the expression of adverse findings on credit and fact are an inevitable part of the expression of the reasons.  The mere fact of adverse findings at the end of the matter give rise to no inference as to the state of mind of the decision maker before and whilst the matter was under consideration, nor of prejudgment of the issues that fell for decision.  Even where it is possible to show that the adverse findings or some of them are contrary to the evidence or unreasonable, or that the reasoning process is hopelessly flawed, that without more is unlikely to demonstrate that the decision maker had embarked on the case with a closed mind, not open to persuasion. …

4. The High Court explained in Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48 at [67] that:

   … an allegation of apprehended bias requires an objective assessment of the connection between the facts and circumstances said to give rise to the apprehension and the asserted conclusion that the judge might not bring an impartial mind to bear upon the issues that are to be decided.  An allegation of apprehended bias does not direct attention to, or permit consideration of, whether the judge had in fact prejudged an issue.  To ask whether the reasons for judgment delivered after trial of the action somehow confirm, enhance or diminish the existence of a reasonable apprehension of bias runs at least a serious risk of inverting the proper order of inquiry (by first assuming the existence of a reasonable apprehension).  Inquiring whether there has been “the crystallisation of that apprehension in a demonstration of actual prejudgment” impermissibly confuses the different inquiries that the two different allegations (actual bias and apprehended bias) require to be made.  And, no less fundamentally, an inquiry of either kind moves perilously close to the fallacious argument that because one side lost the litigation the judge was biased, or the equally fallacious argument that making some appealable error, whether by not dealing with all of the losing side's arguments or otherwise, demonstrates prejudgment.

   (Emphasis in original and citations omitted)

5. Having regard to those authorities, as well as the material before the Court, there is nothing to support the allegation that the Tribunal was biased, regardless of whether that allegation is taken to be one of actual bias or apprehended bias. This ground is rejected.

Ground four: the Tribunal misinterpreted the law.

1. The Tribunal’s decision turned upon its rejection of the applicant’s main factual claims, and its assessment of the risk of harm that the applicant faced upon return to Vietnam, against the background provided by the country information considered by it. Having made that assessment, the Tribunal expressed its conclusions in terms consistent with the criteria for the grant of a protection visa found in sub-ss.36(2)(a) and 36(2)(aa) of the Act. In light of that, and the fact that the applicant has not identified any specific misinterpretation of the law by the Tribunal, I reject this ground.

Ground five: the Tribunal denied the applicant procedural fairness by failing to consider real risk factors that the applicant could be harmed given the applicant was involved with Vietnamese dissidents and politics from 2010 and his name was on the blacklist of Vietnamese authorities.

1. This ground merely expresses dissatisfaction with findings of fact made by the Tribunal. Ground 5 is rejected.

Ground six: the Vietnamese interpreter at the Tribunal was not qualified and failed to translate or was unable to translate the applicant’s documents correctly.

1. The only evidence concerning the interpretation of the evidence before the Tribunal was contained in the reasons for the decision of the Tribunal. The applicant, who was self-represented in these proceedings, did not adduce, or attempt to adduce, any evidence that might show that the interpretation was incorrect in any way. At the end of the hearing before me, the applicant offered to send to the Court a recording of the hearing conducted before the Tribunal. He did not do so. In any event, a recording of the Tribunal hearing could not have established that the interpretation was incorrect. There would have to be further evidence from a person with sufficient skill in both the Vietnamese and English languages to establish that.

2. In any event, the Tribunal does disclose that there was some inadequacy in the interpretation of one of the documents relied upon by the applicant at [27] of its decision:

   … At the hearing, the interpreter translated the contents of a post by a person under the name of “Chien Vu” which was submitted by the applicant (T1.27) which criticised the applicant for having his name with people who have cursed the country but which wished him good health and happenings. The applicant said there is part of the post that if he returns to Vietnam the Communists will not leave him alone because of his activities against the government but he thought this had not been translated. I am prepared to accept that the post does say this as suggested by the applicant; however I do not accept that this post was written by General Chien Vu. …

3. This passage reveals that the inadequacy in the interpretation at the hearing related to the asserted failure by the interpreter to translate part of one of the applicant’s documents. The passage however, also reveals that the inadequacy was pointed out to the Tribunal by the applicant himself. That was no doubt possible because the applicant had, by the time of the hearing, lived in Australia for well over 10 years, having arrived here as a student in 1999.

1. As the applicant was able to point out the apparent error in interpretation to the Tribunal, and because the Tribunal accepted what the applicant said about the document in question, there was no unfairness that resulted from any inadequacy in the interpretation. This was not a case where the applicant was unable because of the interpretation, to properly present his case, or where the Tribunal failed to consider relevant material because of the interpretation.

2. For those reasons this ground must be rejected.

Conclusion

1. There is no jurisdictional error in the Tribunal’s decision. The application must be dismissed.

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Judge Smith

Associate: 

Date:   29 September 2017